2009 Wrap Up

"Everyone" does it this time of year – looking ahead -- From same-sex marriage in New Hampshire to payday loans in Kentucky, and all kinds in between, new state laws taking effect on New Year's Day stand the chance of affecting the way a lot of people live. Here's an overview of some of those recollections we found so far.

A USAToday article this morning relates:

• California becomes the first state to bar restaurants from cooking with trans fat — Restaurants will be prohibited from using oils, margarines and shortening containing more than half a gram of trans fat per serving. Violators are subject to $1,000 fines. Gov. Arnold Schwarzenegger signed the law in 2008, giving restaurants more than a year to make the switch. (L.A.Times article)(Text of Law)


• New Hampshire becomes the fifth state permitting same-sex marriage as a result of legislation signed by Democratic Gov. John Lynch in June. (N.Y.Times article)(Text of Bill)


• "Kentucky seems to be leading the way" in limiting payday loans, said Meagan Dorsch, spokeswoman for the National Conference of State Legislatures. New limits affect the payday loan business, with borrowers now being limited to two loans totaling no more than $500 at any one time. (Bill Text)


• Illinois becomes one of at least 18 states where it is illegal to send or receive text messages or e-mail while driving. Illinois is also making it illegal to talk on a cellphone while driving in a highway construction zone or school zone, DuPage County Sheriff John Zaruba said. "These new laws are important and will make our roads safer for all motorists," he said. (Good overview of state laws )

MSNBC notes:

• Among the most surprising new laws set to take effect in 2010 is a smoking ban for bars and restaurants in North Carolina -- the nation's largest tobacco producer. Not including Virginia and its partial ban, smoking will be banned in restaurants in 29 states and in bars in 25, according to the American Lung Association. Twelve more states — including Florida, Michigan and Arkansas — have passed laws requiring manufacturers to make their cigarettes less likely to start fires, leaving Wyoming as the only state without such laws, according to the Coalition for Fire-Safe Cigarettes. ( Overview of state laws )


• Bans on texting while driving go into effect in New Hampshire, Oregon and Illinois. According to the Governors Highway Safety Association, that will make 19 states that have outlawed the practice, not including six states that prohibit using hand-held cell phones while behind the wheel.

"The new year will bring with it more opportunities for Ohioans to be ticketed and fined, but also some new benefits," another article last week said. Beginning Friday, January 1, Ohioans can be ticketed and fined $100 for failing to turn on their lights when their windshield wipers are on. Law enforcement has only been issuing warnings in the first six months since the law took effect. Ohio is the 17th. state to adopt "lights-on-during-precipitation" laws. (HB 2)

And mention was made in a Cincinnati Enquirer article last weekend about health insurers having new limits on how much they can charge Ohioans with certain pre-existing diseases or chronic conditions, beginning tomorrow. "The new Ohio law will allow about 52,000 more Ohio adults to buy health insurance, according to state Insurance Director Mary Jo Hudson," the article said. "The law change set a rate-cap so more Ohioans can buy basic health coverage through the state-mandated Open Enrollment Health Insurance Program. The change is expected to cut premiums in half." (Further information Here)

Robert Ambrogi highlighted some of the more interesting law-related "top 10" lists on Law.com's Legal Blog Watch just before Christmas, as well. (Here)

Hamilton County Common Pleas/Commissioner Dispute

The Ohio Supreme Court yesterday issued an order staying the enforcement of the October 15, 2009 order by the Hamilton County Court of Common Pleas, In re Appointment of Special Legal Counselagainst Hamilton County Commissioners, "pending further order of the Court," Justice Maureen O'Connor dissenting and having would have denied a stay "until such time as one of the parties to the case requested such a stay."


County Commissioners Todd Portune and David Pepper last month filed a complaint for a writ of prohibition -- an appellate court order preventing a lower court from exceeding its jurisdiction or preventing a non-judicial officer or entity from exercising such powers, according to Black's Law Dictionary . "As a matter of law, the only authority granted the Court of Common Pleas over the relationship between the Board and its chosen counsel exists pursuant to R.C. 305.14(A)," the Commissioners' complaint read. Citing a 1986 case, , 28 OSt3d 179, it continued by saying, "The Board is entitled to a writ of prohibition because: (1) Respondents are exercising judicial or quasi-judicial power; (2) the exercise of that power is unauthorizcd by law; and (3) there is no adequate alternative remedy."


The Common Pleas Court had answered the complaint with a motion to dismiss saying the Commissioners had failed to "state a claim upon which the extraordinary relief of prohibition may be granted," (and) that it was "beyond dispute from the face of the Board's Complaint that the errors complained of are non-jurisdictional and may not form the predicate for a writ of prohibition."

Referring to cases such as State ex rel. Stamps v. Auto. Data Processing Bd., 42 O St.3d 164 in 1989, and R.C. 309.09(A), the Common Pleas motion countered "Significantly, R.C. 309.09(A) prohibits a county officer from employing any attorney other than the county prosecuting attorney, except as provided in R.C. 305.14."

Then, citing a number of additional cases, including Hallock, the Common Pleas motion stated that it had "been held repeatedly that in the absence of a conflict of interest the Prosecuting Attorney is the sole legal adviser to the county and its officers, who cannot be supplanted or replaced by special counsel."

Ohio Post-release Control Corrections

The Ohio Supreme Court once again visited criminal sentencing themes last Tuesday, clarifying requirement procedures for re-sentencing offenders when post-release controls were not properly addressed by the trial court. The case, State v. Singleton, held "in order to correct criminal sentences that do not properly impose a term of post-release control, the state's trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute." (Court's Summary)

Last September, the Supreme Court in State v. Bankhead occasioned the release of a Hamilton County man from post-release control "on the authority of State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d 1254.Appellant is discharged from post-release control because he has completed serving his prison sentence and, pursuant to State v. Bezak, 114 Ohio St.3d 94,2007-Ohio-3250, 868 N.E.2d 961, is no longer subject to resentencing."

State v. Bloomer, back in June, was actually three cases consolidated before the Court, in which it reviewed the "consequences of the trial court's failure to either notify an offender about post-release control at the time of sentencing or incorporate post-release control into its sentencing entry. The issues presented also concerned the application of ORC § 2929.191, which provides a mechanism for correcting a judgment entry if a trial court fails to notify the offender of post-release control or to impose it." Seven cases, beginning with State v. Beasley back in 1984, were looked at in this determination. The Court there held that "[a]ny attempt by a court to disregard statutory requirements when imposing a sentence renders the attempted sentence a nullity or void, (But) because jeopardy does not attach to a void sentence, the court's subsequent correction of the void sentence did not violate double jeopardy" State v. Bezak, in 2007, held that an an offender would be entitled to a new sentencing hearing for the trial court to correct a sentence that omitted notice of post-release control, but, in this case's particulars, because Bezak had already completed his term of imprisonment, the court could not conduct resentencing." That holding was reaffirmed in March 2008 with State v. Simpkins.

The Bloomer court held "In conformity with the development of this jurisprudence, the General Assembly enacted H.B. 137, effective July 11, 2006, which amended R.C. 2967.28, 2929.14, and 2929.19 and enacted R.C.2929.191 to provide a mechanism for correcting sentences in which the trial court failed either to notify the offender of post-release control or to incorporate it into the sentencing entry." ( HB 137 analysis )

The present Court, last Tuesday, said "in order to correct criminal sentences that do not properly impose a term of post-release control, the state's trial courts: 1) must conduct de novo sentencing hearings for offenders who were sentenced before July 11, 2006; and 2) must follow statutory resentencing procedures set forth in R.C. 2929.191 for offenders whose sentences were imposed on or after July 11, 2006, the effective date of the statute."

Justice Terrence O’Donnell, writing for the majority, noted that, "because no statutory mechanism to correct a sentence that failed to properly impose post-release control existed prior to July 2006, the law applicable to sentences imposed prior to that date is case law, including several decisions of the Supreme Court of Ohio.

"R.C. 2929.191 purports to authorize application of the remedial procedure set forth therein to add post-release control to sentences imposed before its effective date,” he wrote. “We recognize the General Assembly’s authority to alter our case law’s characterization of a sentence lacking post-release control as a nullity and to provide a mechanism to correct the procedural defect by adding post-release control at any time before the defendant is released from prison. However, for sentences imposed prior to the effective date of the statute, there is no existing judgment for a sentencing court to correct. H.B. 137 cannot retrospectively alter the character of sentencing entries issued prior to its effective date that were nullities at their inception, in order to render them valid judgments subject to correction. Therefore, for criminal sentences imposed prior to July 11, 2006, in which a trial court failed to properly impose post-release control, the de novo sentencing procedure detailed in decisions of the Supreme Court of Ohio should be followed to properly sentence an offender. “On the other hand, prospective application of the statutory resentencing procedure in R.C. 2929.191 to correct sentences imposed on or after the effective date of that statute is consistent with the legislature’s stated intent “to protect the residents of this state from the consequences that might result if the state is forced to release without supervision offenders who have been convicted of serious offenses and imprisoned, solely because the offenders were not provided notice of the fact that the law always requires their supervision upon release from prison."

In describing the Court’s split its summary revealed Justice O’Donnell’s opinion was joined in its entirety by Justice Robert C. Cupp. Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer and Maureen O’Connor concurred in judgment and in the portion of the lead opinion syllabus holding that R.C. 2929.191 cannot be applied retrospectively, but dissented from the lead opinion’s syllabus and discussion addressing the prospective application of R.C. 2929.191. Justices Evelyn Lundberg Stratton and Judith Ann Lanzinger concurred in the syllabus holding that R.C. 2929.191 may be applied prospectively, but dissented from the portion of the syllabus and lead opinion holding that the statute may not be applied retroactively.

Southwest Ohio SORN update

More than three years after Congress, in passing the "Adam Walsh Act," ordered stepped-up monitoring of sex offenders, an MSNBC article the first of the month said, only one state – Ohio -- has succeeded in adopting the government's strict new requirements.

This entry attempts a survey some of those recent developments in our area.

The law was designed to keep closer tabs on sex offenders, including an estimated 100,000 who are not living where they are supposed to be, and create a national sex offender registry and toughen penalties for those who fail to register. "The initial deadline for states to comply was in July," the article says. "Then the deadline was extended to July 2010, although several states have signaled they may still be unable to meet it. States that do not adopt the mandates risk losing millions of dollars in federal grants… But those efforts have been hampered by high costs and legal challenges from the nation's 686,000 registered sex offenders."

Recent court cases have varied returns, too. The article related Nevada U.S. District Judge James Mahan, last year declared pertinent laws there unconstitutional because "application of these laws retroactively is the equivalent a new punishment tacked onto the original sentence – sometimes years after the fact – in violation of the Ex Post Facto and Double Jeopardy Clauses of the U.S. Constitution, as well as the Contracts clauses of the U.S. and Nevada Constitutions."(Nevada Injunction )

Closer to our home here in Cincinnati, the 6th. Circuit Court of Appeals just two months ago reversed a sex offender's conviction for failing to register under SORNA, holding in part that "The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation. But because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, [appellant here] was not subject to SORNA's requirements during the period indicated in his indictment." (6th. Circuit Ruling )

And just last Friday morning, a Law.com article was telling of the 2nd. U.S. Circuit Court of Appeals' rendering that Federal prosecution for failure to register as a sex offender does not violate the right to due process of law. "The 2nd Circuit explained that 'Although neither New York nor Florida had implemented the specific requirements set forth in SORNA during the time period charged in the indictment, both states had sex offender registration programs that complied with the federal Jacob Wetterling Act, 42 U.S.C. §14071, et seq., which was the statutory precursor to SORNA.'"( 2nd. Circuit Opinion )

The Ohio Supreme Court's case announcements last Wednesday noted that of the seven cases the Court agreed to hear this week, five of them were being held pending a decision in the State v. Bodyke sex offender case about heightened registration and public notification requirements of the state's sex offender statute, amended in 2007. Bodyke, a consolidated appeal out of Huron County, Ohio, "challenges to Ohio's statutes based upon separation of powers, retroactivity, ex post facto, double jeopardy, due process, cruel and unusual punishment and breach of contract." Oral arguments in the case were heard Nov. 4( Memorandum in Support)( Answer ). Ohio's SORN law was SB 10, effective Jan. 1, 2008 (Bill Analysis )

Of the seventy Ohio bills introduced in the "crimes & punishment" category this year, nine are SORN-related, including one introduced just before Thanksgiving which would revamp how often & the way Tier III offenders register their addresses – from every 90 to every 30 days-- and the way deputies track them, though not how sheriff's offices would pay for the cost of increased monitoring. ( Cleveland Plain Dealer article) ( Text of Bill )

Ohio Supreme Court cell phone search ruling

The Ohio Supreme Court yesterday ruled that Fourth Amendment prohibitions against unreasonable search and seizures required police to obtain warrants before searching data stored in a cell phone that has been seized from its owner in the course of a lawful arrest, even when the search is not necessary to protect the safety of law enforcement officers or there are exigent circumstances.


Noting that neither the U.S. Supreme Court nor any other state supreme court appears to have ruled on the Fourth Amendment implications of a cell phone search, Justice Judith Ann Lanzinger said the two leading cases on that issue appear to be the conflicting federal court decisions cited in the 2nd District's majority and dissenting opinions.


Of these, Justice Lanzinger wrote: "In United States v. Finley ...the Fifth Circuit upheld the district court's denial of defendant's motion to suppress call records and text messages retrieved from his cell phone. ... Finley was arrested during a traffic stop after a passenger in his van sold methamphetamine to an informant. During the search incident to the arrest police found a cell phone in Finley's pocket. He was taken along with his passenger to the passenger's house, where other officers were conducting a search. While Finley was being questioned there, officers examined the cell phone's call records and text messages, finding evidence that appeared to be related to narcotics use and drug trafficking. ... In upholding the search, the Fifth Circuit analogized Finley's cell phone to a closed container found on an arrestee's person, which may be searched. ... Notably, Finley had conceded that a cell phone was analogous to a closed container. ... But because Smith, here, does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.


"The United States District Court for the Northern District of California, disagreeing with the Fifth Circuit's decision in Finley, granted a defendant's motion to suppress the warrantless search of his cell phone. United States v. Park (N.D.Cal., May 23, 2007). Police officers observed Park entering and leaving a building that they had under surveillance and for which they had obtained a search warrant. When they executed the warrant and searched the building, they found evidence of an indoor marijuana-cultivation operation. They arrested Park and took him to booking, where they searched him and found a cell phone. Before turning over the cell phone to the booking officer, the arresting officer recorded names and phone numbers found in Park's cell phone. ... Because the search of the cell phone's contents was not conducted out of concern for the officer's safety or to preserve evidence, the court found that it did not fall under the search-incident-to-arrest exception and that the officers should have obtained a warrant to conduct the search.”


In the present case, Justice Lanzinger wrote, "The state argues that we should follow Finley and affirm the court of appeals because the trial court was correct in its conclusion that a cell phone is akin to a closed container and is thus subject to search upon a lawful arrest. We do not agree with this comparison, which ignores the unique nature of cell phones. Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, 'container' means 'any object capable of holding another object.' New York v. Belton,/em> (1981)."



Court's Summary
Ruling

Ohio certification program of court interpreters

The Supreme Ohio Court announced last Monday that it will begin certification of court interpreters as of Jan. 1, 2010, with Rules 80 through 87 and Appendix H of the Rules of Superintendence for the Courts of Ohio going into effect on that date.

The Interpreter Services Program is designed to provide assistance to judges and the courts statewide on issues of foreign language interpretation, and was initiated with the Court's joining the National Center for State Courts' Consortium for State Court Interpreter Certification in June 2003. The Court then created its Advisory Committee to Study Use of Court Interpreters in April 7, 2005

"State and federal law requires complete and accurate interpretations in legal proceedings," the Court's release said. "These rules ensure that constitutional guarantees are afforded to all linguistic minorities, including deaf and hard of hearing populations. The certification will ensure that interpreters working in the courts meet the minimum standards of language fluency. Applicants will take the written examination developed by the Consortium for Language Access in the Courts, an arm of the National Center for State Courts. Candidates will also take an oral examination, to measure their English and foreign language ability."

New Rules

The Supreme Court also has several publications relating to court interpreters:

• “Report on the Use of Interpreters in Ohio Courts” (2006)
• "Working with Interpreters for Deaf or Hard of Hearing Persons in the Courtroom” (2007)
• "Working with Foreign Language Interpreters in the Courtroom” (2007)

Ohio BMV cancelling illegal immigrant vehicle registrations

Franklin County Magistrate Pamela Browning last Monday morning declined to grant a preliminary injunction against the Ohio Bureau of Motor Vehicles to prevent them from cancelling vehicle registrations of nearly 45,000 cars & trucks largely driven by undocumented immigrants. Beginning yesterday, the Columbus Dispatch reported, it will be illegal for thousands of immigrants to drive on Ohio's roads. The BMV is canceling their vehicle registrations for failing to prove they are legal U.S. residents. Police can stop those driving with revoked registrations, issue tickets and seize license plates. Drivers who cannot provide adequate identification risk going to jail, with undocumented immigrants also potentially facing deportation.

“BMV changes to weed out fraudulent registrations began on Aug. 24,” the article said, “the reforms being delayed for more than a year after former Public Safety Director Henry Guzman met with Latino business owners and then asked for improvements to the policy. BMV began a crackdown on Oct. 8, mailing out some 47,457 letters to those with questioned registrations instructing them to appear at BMV offices by yesterday and provide a state driver's license, ID number, or a Social Security number so their identities could be verified.”

While the BMV's letter said that registrations would be cancelled as of Dec. 8th , the BMV decided to wait until yesterday to take the action to provide those affected with a full 60 days notice, spokeswoman Lindsay Komlanc said.


Magistrate Browning's ruling

Ohio's execution of Kenneth Biros

Ohio's new single-drug lethal injection protocol appears to have worked as expected yesterday morning in the execution of Kenneth Biros at the Southern Ohio Correctional Facility in Lucasville, Ohio. An Associated Press article this morning said, "experts had predicted the single drug used, sodium thiopental — used in many parts of the world to put pets down — would take longer to kill than the old method used by Ohio and another 34 states. But the 10 minutes it took Biros to die was about as long as it has taken other inmates in Ohio and elsewhere to succumb to the three-drug combination."


CNN also had an article.

Ohio death penalty news

The Cincinnati and Miami Valley region was almost a virtual hotbed of capital punishment/ death penalty news & issues these past couple of weeks. Here's an overview updating for anyone who may have missed it.

The Wednesday before Thanksgiving, the U.S. 6th. Circuit Court of Appeals ruled that with the new method of lethal injection the state of Ohio has decided to pursue, Kenneth Biros – along with other death row inmates – can no longer argue that Ohio's three-drug cocktail of lethal drugs violates their constitutional rights. That meant Biros could be executed tomorrow ( Article )( 6th. Circuit's decision ) (District Court's motion )

The ruling, however, didn't prevent attorneys from petitioning the Court for future stays of execution challenging the new, single-drug, method, which was expected by state officials. Instead, Biros' attorneys last Friday contested the 6th. Circuit's 3-justice panel decision and petitioned for a rehearing by the full court, claiming that the State's changing the method of execution did not, in fact, answer their challenge. ( Petition ) The state's Attorney General's response is Here.


Another article indicated death-row inmate – Romell Broom, whose attempted execution back on Sept. 15th. led to the current, unofficial, moratorium in Ohio – petitioned the Ohio Southern District Court to bar a second attempt at executing him. That case will be being heard next week.


Kentucky's Supreme Court on November 25th. found that that state "improperly adopted" its 3-drug lethal injection protocol in spite of the both that court and the U.S. Supreme Court's ruling last year that the procedure -- also used by a majority of the other states employing lethal injection in executions – was constitutional and didn't constitute cruel & unusual punishment. The Kentucky high court in the case – raised in part by two of the party inmates to those first two cases – agreed that the lethal injection protocol should be adopted by the prescribed legislative procedure, by that the fact that it hadn’t been didn't affect the inmates' disposition. ( Article) ( Ruling )( Kentucky’s statute)


Then there was the case of Cecil Johnson, who the State of Tennessee executed last Wednesday morning. The Supreme Court denied Johnson's last-minute appeal out of the 6th. Circuit, with Justices John Paul Stevens and Clarence Thomas' strongly worded opposite positions on whether the lengthy delay since Johnson’s conviction in 1981 in fact constituted cruel & unusual punishment under the Constitution, perhaps drawing more attention than the facts. Law.com's Marcia Coyle summarized it as "Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented in denying certiorari, saying Johnson's situation was 'as compelling a case' as he had encountered raising the constitutional concerns that Stevens himself raised in a 1995 dissent from another denial of certiorari: Lackey v. Texas…. (remaining) steadfast in his view that execution after such delay is unacceptably cruel because it subjects death row inmates to decades of severe, dehumanizing conditions of confinement, also adding that delaying an execution does not further the public purposes of retribution and deterrence. Justice Thomas, in a spirited response, said Johnson spent 29 years challenging his conviction and sentence and 'now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out.'"

Lackey's petition in 1995 was denied so as to permit "the state and federal courts to 'serve as laboratories in which the issue receives further study before addressed by the Supreme Court.'"


Lastly, the Ohio Supreme Court Wednesday affirmed the death sentence of a Kerry Perez for aggravated murder committed in 2003. ( Decision )( Court's Summary ) Perez had claimed 13 allegations of error by his trial court, including that it “should not have admitted into evidence tape recordings of conversations between Perez and his wife, Debra, that were made with Debra's consent but without her husband’s knowledge during her visits with him at the Clark County jail. Perez contended that admitting secret recordings of what he believed to be confidential communications with his spouse into evidence violated the marital-communications privilege set forth in R.C. 2945.42 and denied him due process of law."

Justice Cupp noted that courts in some states have interpreted their privilege statutes broadly to bar third-parties from introducing evidence of spousal communications that was obtained from or with the help of a defendant’s collaborating spouse. However, he cited with approval a Michigan Supreme Court decision, People v. Fischer, 442 Mich. 560 (1993), that interpreted statutory language barring a spouse from being “examined” with respect to spousal communications to preclude in-court testimony by a spouse as a sworn witness, but not to preclude introduction of marital communications into evidence through other means.